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As in Regulation (EU) No 648/2012 (EMIR) for OTC derivatives, MiFIR establishes a clearing obligation for ETDs as well as a non-discriminatory and transparent access to CCPs and trading venues for transferable securities, money market instruments, and ETDs.
EMIR defines OTC derivative as a derivative contract not concluded on a regulated market or a third country market considered as equivalent to a regulated market. In contrast, MiFIR defines ETDs as "a derivative that is traded on a regulated market or on a third-country market considered to be equivalent to a regulated market" and as such does not fall into the definition of an OTC derivative as defined in EMIR.
Thus, where MiFIR open and non-discriminatory access provisions apply to derivatives traded at least on a regulated market, the EMIR open access provisions apply to derivatives only traded OTC, including derivatives traded on multilateral trading facilities or organised trading facilities provided that they are not otherwise traded on a regulated market or third-country market considered to be equivalent to a regulated market.
According to Article 52(12) of MiFIR, this report only covers ETDs and thus does not include transferable securities, money market instruments and OTC derivatives
The Commission notes that EMIR open and non-discriminatory access provisions already apply to OTC derivatives, transferable securities and money market instruments without temporary exemptions. Following ESMA's assessment, it appears that these access arrangements have not caused any noticeable systemic risk. It is noteworthy in this regard that OTC derivatives are generally less standardised and more complex than ETDs. In consequence, it can be expected that the implementation of MiFIR open and non-discriminatory access provisions to ETDs may not raise more complexity than for OTC derivatives.
The implementation of open and non-discriminatory access to ETDs under MiFIR might nevertheless raise risks that could potentially threaten the smooth and orderly functioning of markets or adversely affect systemic risk. More specifically, this report outlines a number potential risks and in particular risks in relation to (i) the concentration of the trading and the clearing activity in vertically integrated groups, and to (ii) the potential multiplication of interoperability arrangements that would substantially raise the level of complexity in the overall risk management of interoperable CCPs.
Having examined these risks, the Commission considers that the current regulatory framework in MiFIR and EMIR appropriately addresses the potential risks identified. In addition to their regulation by relevant competent authorities, EMIR establishes organisational conduct of business, prudential standards and macroprudential rules for CCPs. In parallel MiFIR gives the possibility for CCPs, trading venues and relevant authorities to deny access to the relevant infrastructure, as detailed in the regulatory technical standard on clearing access in respect of trading venues and central counterparties, should the CCP, the trading venue or the market be potentially put at risk.
On this basis, the Commission concludes that it is not necessary to temporary exclude exchange-traded derivatives from the scope of Articles 35 and 36 of MiFIR.